Who Polices the Police? Not the Court of Appeal!

Who Polices the Police? Not the Court of Appeal!

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Tuesday February 23, 2010.

The Ontario Court of Appeal in the recent case of Regina v. Harrison, 2008 ONCA 85, has given a license for police to trample on individual rights so long as the fruits of their conduct yields evidence of a crime. Under what appears to be a new form of analysis of s. 24(2) of the Charter, as long as the Crown can establish that the admission of the impugned evidence is necessary to continue the prosecution, the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it, and thus, the evidence goes in and the rights go out the window.

The Charter was designed not be a suggestion but to protect society from unjust conduct by the state. Harrison will do little to protect society but in the long run will only serve to harm societal interests by inviting more incursions into privacy by state actors.

Harrison and his co-accused were operating a rental vehicle and driving from Vancouver to Toronto. While passing through Kirkland Lake, an OPP officer pulled over the vehicle because it was missing a front plate. As the officer positioned himself behind the vehicle he realized that the car was from Alberta and in Alberta it is not an offence to drive a vehicle without a front plate. The police officer admitted at trial that he had no valid legal grounds to continue the stop and search the motor vehicle.

While under detention, the officer observed certain indicia of drug transportation and upon questioning of the driver, discovered that the driver had a suspended license. The officer then arrested the driver and conducted a search of the vehicle incident to arrest.
Cocaine was found in the rear the vehicle which weighed approximately 35 kilograms and had a street value of between $2,463,000 and $4,575,000.

The trial judge found that the officer arbitrarily detained the occupants of the car and that the search of the vehicle was unreasonable contrary to s. 8 of the Charter. The trial judge found that the police officer’s conduct was flagrant in nature. However, the he refused to exclude the evidence because trial fairness was not compromised and the Charter breaches “pale in comparison to the criminality involved in the possession for the distribution of 77 pounds of cocaine…” On appeal, the Court of Appeal by a two judge majority upheld the trial judge’s decision noting that the breaches did not have a particularly serious effect on the appellant’s Charter rights and the appellant’s privacy interest in the car was low. Further, the majority noted that this was not an easy case – “far from it.” “This was a close call and one which reasonable people would disagree.” Thus, deference came into play.

The dissenting voice of Madam Justice Cronk was scathing to say the least of the analysis by the majority. Cronk J. stated, “where the evidence was obtained as a result of serious and deliberate police misconduct, including an attempt by a police officer to mislead the court about the basis for his impugned conduct, respect for the values enshrined in the Charter must take precedence and the court must dissociate itself from such misconduct. What occurred here was disdainful of the rights and freedoms protected by the Charter. Accordingly, on a proper balancing of all relevant factors in this case, I conclude that the trial judge’s decision to admit the evidence of the cocaine must be set aside. While excluding the evidence could bring the administration of justice into disrepute, on the record in this case, the administration of justice would be brought into greater disrepute by admitting it. To hold otherwise, on the facts and in the circumstances of this case, would invite the disregard of Charter rights by the police, with an unspoken ‘assurance of impunity.”

We have appropriately avoided in Canada legitimating incursions into individual rights by an “end justifies the means” analysis. The majority in Harrison dangerously crosses this border. Trial defence lawyers can take one thread of hope from this case however. We must urge trial courts to exclude evidence in similar circumstances as Harrison and argue that appeal courts will and must show equal deference to decisions to exclude when the case is a “close call”.

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On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
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  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
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  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

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What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
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Stay safe and healthy,

Joseph Neuberger